"NOTE - Certain confidential technical and commercial information has been
redacted from this exhibit in order to preserve the confidentiality of such
information. All of the confidential information which has been redacted is on
file with the Securities and Exchange Commission. Redacted material is
indicated by the symbol, "[**REDACTED**]" where such redacted text would have
appeared in this exhibit."
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
CABLE RESELLER AND MALL AGREEMENT
MediaOne of Colorado, Inc.
THIS CABLE RESELLER AND MALL AGREEMENT (the "AGREEMENT") is made and
entered into as of the date set forth on the Addendum attached hereto and by
this reference made a part hereof (the "ADDENDUM"), between and among
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC., a California corporation, and NETGATEWAY, a Nevada
corporation, on the one hand (collectively, "STORESONLINE"), and the Reseller
identified on the Addendum, on the other hand ("RESELLER").
R E C I T A L S
- - - - - - - -
A. Reseller is an established business entity, engaged in the business
of providing high speed Internet access, data transmission and cable television
programming services throughout the United States.
B. StoresOnline is a provider of turnkey electronic commerce services
which: (i) develops, manages, maintains and hosts online electronic shopping
malls and (ii) owns, operates and maintains an Internet storefront-building
services package comprised of certain services delivered through StoresOnline's
proprietary software, the standard features of which are more particularly
described on the Addendum (collectively, the "SERVICES").
C. The Services are delivered through the Internet and may be made
available through a private, branded electronic exchange to be developed for
Reseller.
D. StoresOnline desires to: (i) sell and license the Services to
Reseller for Reseller's resale and sublicense to end-user customers or, with the
written permission of StoresOnline, to other resellers and (ii) develop, manage,
maintain and host one or more on-line malls to be branded around Reseller's
name, brand and image (each, a "Mall" and collectively, the "Malls").
E. Reseller desires to purchase and license the Services for resale to
end-user customers and shall use its unique resources to promote the Services as
hereinafter set forth.
AGREEMENT
NOW, THEREFORE, on the basis of the foregoing recitals, and in
consideration of the mutual promises contained herein, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto covenant and
agree as follows:
1. SERVICES.
a. SCOPE OF AGREEMENT. This Agreement covers (i) the purchase,
licensing, promotion and sale of the Services and (ii) the design and
development of the Malls, all in accordance with the terms and conditions set
forth herein and on the Addendum.
b. LICENSE GRANT; SALE OF SERVICES. StoresOnline grants to
Reseller, subject to the terms and conditions of this Agreement, the
[**REDACTED**] right and license to resell and sublicense (in the case of
software products), the Services to Reseller's end-user customers or, with
the written permission of StoresOnline, to other resellers. In the case of
software products, Reseller acknowledges that such software is and will
remain proprietary to StoresOnline, is copyrighted and that Reseller acquires
no right, title or interest in or to any such software by this Agreement.
Reseller agrees to sublicense the Services hereunder pursuant to the Standard
License Agreement Terms set forth on Exhibit A hereto, and to cause each of
its customers or other resellers to sublicense the Services pursuant to such
terms, which terms, in the case of a reseller, shall be accepted upon store
set-up and, in the case of an end-user customer, shall be accepted as part of
the storefront registration process described below.
c. PRODUCT NAME. It is expressly agreed that the ownership and all
right, title and interest in and to the Services and any trademark, trade name,
patent or copyright relating to the Services is and will remain vested solely in
StoresOnline; PROVIDED, HOWEVER, that as permitted by this Agreement, Reseller
may use any existing or future trademark, trade name, patent or copyright
relating to the Malls and/or the Services, such use to be limited to promoting,
selling, installing or maintaining the Malls and/or the Services; and PROVIDED,
FURTHER, that as permitted by this Agreement, the Services may be branded around
Reseller's name, brand and image. Reseller shall use commercially reasonable
efforts during the term of this Agreement to protect StoresOnline's trademarks,
trade names, patents and copyrights, but shall not be required to instigate
legal action against third parties for any infringement thereof. Reseller shall
notify StoresOnline of any infringement as soon as practicable after becoming
aware of any such infringement. Reseller shall not use, directly or indirectly,
in whole or in part, StoresOnline's name or any other trade name or trademark
that is owned or used by StoresOnline in connection with any product other than
StoresOnline's products, without the prior written consent of StoresOnline.
d. RESELLER BRANDING. It is expressly understood and agreed
that the ownership and all right, title and interest in and to any trademark,
trade name, patent or copyright owned by Reseller or any end-user customer
hereunder is and will remain vested solely in Reseller or such end-user
customer, as applicable; PROVIDED, HOWEVER, that as permitted by this
Agreement, StoresOnline may use any existing or future trademark, trade name,
patent or copyright owned by Reseller or such end-user customers, such use to
be limited to developing, managing, maintaining and hosting the Malls and/or
the Services.
e. MALL DEVELOPMENT. StoresOnline shall develop, manage,
maintain and host the Malls in accordance with the terms and conditions set
forth herein and on the Addendum. The Malls shall be branded around
Reseller's name, brand and image and shall link to the Reseller's branded
StoresOnline solution. The Malls will include appropriate URL addresses,
four to six featured products and stores from various Reseller and third
party advertisers, additional Reseller and non-Reseller advertiser stores and
products catalogued with text references, and links to top-tier eCommerce
sites. The Malls will also include an appropriate search engine, commerce
functionality, banner and other appropriate advertising space and such other
features as the parties shall mutually agree. The Malls will be capable of
cataloguing stores independently or in conjunction with all other Malls
developed hereunder, if any, as well as other malls which belong to the
StoresOnline electronic mall network. Reseller agrees and understands that
the storefronts of its end-user customers may be placed in one or more
electronic malls developed and/or operated by StoresOnline (in addition to
the Malls).
e. RESELLER ONLINE STORE. StoresOnline shall develop, manage,
maintain and host an online store for Reseller linked to the Malls that may
contain up to fifty products (the "Online Store"). StoresOnline shall update
the Online Store content on a monthly basis as reasonably instructed by
Reseller and as is deemed mutually reasonable by both parties. The Online
Store shall be accessible and fully functional within ten (10) business days
of the date on which Reseller provides StoresOnline with all of the
information required by StoresOnline to complete the Online Store, including
but not limited to, all initial content for the Online Store.
2. TERM OF AGREEMENT. The term of this Agreement shall commence as of
September 1, 1999 and continue for an initial term of [**REDACTED**]. Such
term may be extended for additional one-year terms thereafter with the
affirmative written consent of the parties hereto, such consent to be given
not less than [REDACTED] prior to the expiration of the applicable term.
a. Notwithstanding the foregoing, this Agreement may be
terminated in accordance with the provisions of Section 10.
b. Termination of this Agreement shall not relieve either party
of any obligations incurred prior to termination, including outstanding
delivery and payment obligations and other contractual commitments herein or
mutually agreed to from time to time by the parties in writing. The
obligations set forth in Sections 3d, 6b, 8, 10a, 12c, 12e, 12f and 12h are
expressly intended to survive termination of this Agreement. Upon
termination of this Agreement, each party (i) shall promptly return to the
other party all Proprietary Information (as hereinafter defined) as provided
in Section 12.e hereof; (ii) render a final accounting to the other party of
all amounts due and owing hereunder, and any requisite payments in connection
therewith, within ninety (90) days of such termination; and (iii) shall
cooperate with and provide reasonable assistance to the other party during a
transition period of ninety (90) days.
3. PRICES AND TAXES.
a. PRICES FOR SERVICES. Pursuant to the terms of this Agreement,
StoresOnline shall be entitled to receive from Reseller: (i) the one-time Store
Set-up Price set forth on the Addendum for each of Reseller's end-user customers
which establishes a storefront pursuant hereto; and (ii) the applicable Monthly
Base Wholesale Price set forth on the Addendum for each active storefront
designated as such by Reseller.
b. [RESERVED].
c. RETAIL PRICES FOR SERVICES. On or before the first day of
each month, Reseller shall provide StoresOnline with a list of the Reseller
prices charged for each class of Accounts or for each Account (as hereinafter
defined).
d. PRICES FOR MALL DEVELOPMENT; MALL REVENUE SPLIT. All prices for
Mall design, development and operation provided hereunder shall be as set forth
on the Addendum. It is anticipated that the Malls will generate multiple
revenue streams. [**REDACTED**]
e. TAXES. All prices for any services or products supplied
hereunder are exclusive of any federal, state or local sales, use, excise, AD
VALOREM or personal property taxes levied, or any fines, forfeitures or
penalties assessed in connection therewith, as a result of this Agreement or the
installation or use of services or products hereunder (collectively, but
exclusive of taxes based upon StoresOnline's income, "Taxes"). Reseller or
Reseller's customers, as applicable, shall pay any and all such Taxes, or
StoresOnline may pay such Taxes for Reseller's account or Reseller's customers'
account, in which case Reseller shall be obligated to reimburse StoresOnline for
amounts so paid. Any such Taxes which are charged to or payable by StoresOnline
will be invoiced to and paid by Reseller in the manner set forth in Section 6
below. In the event that Reseller directly invoices its customers pursuant to
paragraph 6.c hereof, Reseller shall be solely responsible for the collection
and payment of any such Taxes.
4. PROMOTION. StoresOnline shall produce two thirty-second television
commercials promoting the Malls and the Services. Reseller, at its sole
expense, shall cablecast the commercials produced by Storesonline a combined
minimum of five hundred times per broadcast month, per broadcast market, in each
broadcast market where the Malls are fully functional, and shall continue to
cablecast such commercials for the term of this Agreement.
5. CUSTOMER ACCOUNTS.
a. CUSTOMER ACCOUNT REGISTRATION PROCESS. The Services provided
hereunder include an online or non-electronic registration process that
Reseller's customers will use to establish storefront accounts with
StoresOnline (the "ACCOUNTS"). In order to establish an Account, Reseller's
customers must complete the registration process in accordance with the terms
set forth by StoresOnline. The general terms and conditions for the use of
Accounts shall be posted from time to time on the Mall sites, or in the event
that StoresOnline establishes an electronic exchange for Reseller, such
information will be posted on Reseller's exchange. The terms and conditions
as posted shall, in all events and at all times, be binding upon the Reseller
and its customers who establish Accounts. The terms and conditions governing
such Accounts may be amended from time to time by StoresOnline in its sole
discretion.
b. CONTINUATION OF CUSTOMER ACCOUNTS. Continuation of each customer
Account is subject to the timely payment of the monthly fees associated with
such Accounts, and failure to do so shall constitute grounds for StoresOnline to
cancel and terminate an Account.
c. USE OF CUSTOMER INFORMATION. The parties hereto agree that
the use of end-user customer and shopper data by either party shall be
prohibited without the mutual consent of both parties. The manipulation,
collection or evaluation of any such data shall be for the internal use and
purposes of the parties only. In no event shall such information be resold,
leased or otherwise transferred to any third parties. Upon termination of this
Agreement, the parties shall cooperate in the use or disposal of all such
information. This provision and the restrictions contained herein shall survive
termination of this Agreement.
6. BILLING AND PAYMENT TERMS.
a. [RESERVED].
b. [RESERVED].
c. DIRECT RESELLER BILLING FOR SERVICES. Reseller shall invoice
its customers directly for the Services provided hereunder. Reseller shall
remit directly to StoresOnline on a monthly basis all applicable Store Set-up
fees and the Monthly Wholesale Retail Price for each active storefront in the
Malls as determined by Reseller. All such fees shall be paid in advance and
are due on the first day of each month.
d. BILLING FOR MALL RELATED CHARGES; ADVERTISING AND RELATED
REVENUES. All revenues generated from the Malls (including advertising and
related revenues) which are required to be split between StoresOnline and
Reseller pursuant to paragraph 3(d) hereof shall be invoiced and collected by
StoresOnline. StoresOnline shall thereafter forward all amounts due, if any, to
Reseller (net 30 days) at the address provided on the signature page hereto,
together with a statement setting forth the total amount collected, the amounts
payable to Reseller and the total amount remitted.
7. REAL TIME PAYMENT PROCESSING. In the event that a customer wishes to
use the StoresOnline real-time credit card payment processing option, such
customer must establish a customer account with an FDIC network bank and must
open an account with a participating credit-card processor.
8. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY.
a. DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFICALLY PROVIDED
HEREIN, THERE ARE NO, AND STORESONLINE EXPRESSLY DENIES, REJECTS AND
DISCLAIMS ANY WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
WARRANTIES OF THE CORRECTNESS, ACCURACY, PRECISION, TIMELINESS OR
COMPLETENESS OF ANY INFORMATION OR SERVICES PROVIDED HEREUNDER.
b. LIMITATION OF LIABILITY. STORESONLINE, ITS DIRECTORS,
OFFICERS, AFFILIATES, EMPLOYEES AND AGENTS SHALL NOT BE LIABLE TO RESELLER OR
TO ANY THIRD PARTY FOR ANY LOSS OR DAMAGE, WHETHER DIRECT OR INDIRECT,
RESULTING FROM DELAYS OR INTERRUPTIONS OF SERVICE DUE TO MECHANICAL
ELECTRICAL OR WIRE DEFECTS OR DIFFICULTIES, STORMS, STRIKES, WALK-OUTS,
EQUIPMENT OR SYSTEMS FAILURES, OR OTHER CAUSES OVER WHICH STORESONLINE, ITS
DIRECTORS, OFFICERS, AFFILIATES, EMPLOYEES OR AGENTS AGAINST WHOM LIABILITY
IS SOUGHT, HAVE NO REASONABLE CONTROL, OR FOR LOSS OR DAMAGE, DIRECT OR
INDIRECT, RESULTING FROM INACCURACIES, ERRONEOUS STATEMENTS, ERRORS OF FACTS,
OMISSIONS OR ERRORS IN THE TRANSMISSION OR DELIVERY OF THE SERVICES, OR ANY
DATA PROVIDED AS A PART OF THE SERVICES PURSUANT TO THIS AGREEMENT, EXCEPT TO
THE EXTENT CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF STORESONLINE.
IN ALL CASES ARISING FROM EVENTS OCCURRING DURING THE TERM OF THIS AGREEMENT,
WHETHER BASED UPON TORT, CONTRACT, WARRANTY, INDEMNITY, CONTRIBUTION OR
OTHERWISE, DAMAGES SHALL BE LIMITED TO, AND RESELLER AGREES NOT TO MAKE ANY
CLAIM OR CLAIMS EXCEEDING TWENTY-FIVE THOUSAND DOLLARS ($25,000.00),
REGARDLESS OF HOW MANY CLAIMS RESELLER MAY HAVE; PROVIDED, HOWEVER, THAT THE
DOLLAR LIMITATION SET FORTH IN THIS SENTENCE SHALL NOT APPLY TO MONIES DUE TO
RESELLER IN CONNECTION WITH ANY OF THE ACCOUNTS ESTABLISHED PURSUANT TO THIS
AGREEMENT. IN ADDITION, IN NO EVENT SHALL STORESONLINE BE LIABLE TO RESELLER
OR TO ANY THIRD PARTY FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
LOSSES OR DAMAGES WHICH RESELLER OR SUCH THIRD PARTY MAY INCUR OR EXPERIENCE
ON ACCOUNT OF ENTERING INTO OR RELYING ON THIS AGREEMENT OR UTILIZING THE
SERVICES, REGARDLESS OF WHETHER STORESONLINE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR WHETHER SUCH DAMAGES ARE CAUSED, IN WHOLE OR
IN PART, BY THE NEGLIGENCE OF STORESONLINE.
c. TIME FOR MAKING CLAIMS. ANY SUIT OR ACTION BY RESELLER
AGAINST STORESONLINE, ITS DIRECTORS, OFFICERS, AFFILIATES, EMPLOYEES, AGENTS,
SUCCESSORS OR ASSIGNS, BASED UPON ANY ACT OR OMISSION ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR SERVICES PERFORMED HEREUNDER, OR ANY ALLEGED
BREACH THEREOF, SHALL BE COMMENCED WITHIN TWO (2) YEARS OF THE FIRST
OCCURRENCE GIVING RISE TO SUCH CLAIM OR BE FOREVER BARRED. THIS PROVISION
DOES NOT MODIFY OR OTHERWISE AFFECT THE LIMITATION OF STORESONLINE'S
LIABILITY SET FORTH IN THIS PARAGRAPH 8 OR ELSEWHERE IN THIS AGREEMENT.
d. DISCLAIMER. THE WARRANTIES AND CONDITIONS SET FORTH HEREIN
AND THE OBLIGATIONS AND LIABILITIES OF STORESONLINE HEREUNDER ARE IN LIEU OF,
AND BUYER HEREBY WAIVES, ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS,
INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NONINFRINGEMENT. IN NO EVENT SHALL STORESONLINE'S
LIABILITY FOR ANY CLAIM ASSERTED BASED ON A VIOLATION OF
WARRANTY OR CONDITION EXCEED THE AMOUNT PAID BY RESELLER
TO STORESONLINE FOR THE AFFECTED ITEM OF SERVICES.
e. INFRINGEMENT. StoresOnline shall indemnify and hold Reseller
harmless from and against any claims by third parties pertaining to the
infringement of U.S. copyrights, trademarks or patents arising solely from
Reseller's use of any of computer programs or software products utilized by
StoreOnline to provide the Services as authorized hereunder, provided that
such computer programs or software products have not been altered, revised or
modified by Reseller in a manner that causes the alleged infringement, and
further provided that: (i) Reseller promptly notifies StoresOnline in
writing of such claim; (ii) StoresOnline shall have sole control of the
defense of any action on such claim and of all negotiations for its
settlement or compromise; (iii) Reseller cooperates with StoresOnline in
every reasonable way to facilitate the settlement or defense of such claim;
and (iv) should such Services become or, in StoresOnline's opinion, be likely
to become, the subject of an infringement claim, Reseller shall permit
StoresOnline, at StoresOnline's expense, to (1) procure for Reseller the
right to continue using such Services, or (2) replace or modify the same to
become functionally equivalent yet non-infringing, or (3) upon the failure of
(1) and (2) above, terminate, without penalty, Reseller's use of the affected
Services, in which event StoresOnline shall refund to Reseller on a pro-rata
basis any prepaid amounts related thereto. Notwithstanding the foregoing,
StoresOnline shall not be liable to indemnify Reseller for any claims of
infringement by third parties relating in any manner to the contents of the
Malls or any of the third party merchants' storefronts contained therein
provided by Reseller or any of its end-user customers.
f. INDEMNIFICATION. Each party, its directors, officers,
affiliates, employees and agents shall indemnify and hold harmless the other
party, its directors, officers, affiliates, employees and agents, from and
against any and all third party claims of up to twenty-five thousand dollars
($25,000) for any loss or damage resulting or arising solely from
circumstances or events reasonably within the control of the indemnifying
party; PROVIDED, HOWEVER, that the claim limitation set forth in the
preceding sentence shall not apply to monies due to the indemnified party
pursuant to the terms of this Agreement.
9. [RESERVED].
10. DEFAULT.
a. RESELLER'S DEFAULT. The failure by Reseller to make any
payment required hereunder or a material breach by Reseller of its
obligations hereunder shall constitute an event of default by Reseller. Upon
the occurrence of an event of default, StoresOnline shall provide Reseller
with written notice specifying the nature of such default. If Reseller has
not cured such default within thirty (30) days after receipt of such notice,
StoresOnline may, at its sole discretion, terminate this Agreement and/or
seek any other available remedies available at law or in equity; PROVIDED,
HOWEVER, that the cancellation of this Agreement shall not prevent Reseller
from reselling the Services (and sublicensing the software component thereof)
previously paid for by Reseller and sublicenses previously granted by
Reseller pursuant hereto shall not be affected by such termination.
b. STORESONLINE'S DEFAULT. The failure by StoresOnline to make
any payment required hereunder or a material breach by StoresOnline of its
obligations hereunder shall constitute an event of default by StoresOnline.
Upon the occurrence of an event of default by StoresOnline, Reseller shall
provide StoresOnline with written notice specifying the nature of such
default. If StoresOnline fails to cure such default within thirty (30) days
after receipt of such notice, Reseller may, at its sole option, terminate
this Agreement and/or seek any other available remedies available at law or
in equity.
c. INSOLVENCY. The commencement of any proceeding (voluntary or
involuntary) in bankruptcy or insolvency by or against either party hereto,
or the appointment (with or without the party's consent) of an assignee for
the benefit of creditors or a receiver with respect to either party hereto
shall constitute an event of default hereunder, and the non-defaulting party
may elect to terminate this Agreement immediately.
11. DISPUTE RESOLUTION.
a. It is the intent of the parties that all disputes arising
under this Agreement be resolved expeditiously, amicably, and at the level
within each party's organization that is most knowledgeable about the
disputed issue. The parties understand and agree that the procedures
outlined in this Paragraph 11 are not intended to supplant the routine
handling of inquiries and complaints through informal contact with customer
service representatives or other designated personnel of the parties.
Accordingly, for purposes of the procedures set forth in this paragraph, a
"DISPUTE" is a disagreement that the parties have been unable to resolve by
the normal and routine channels ordinarily used for such matters. Before any
dispute arising under this Agreement, other than as provided in subparagraph
e. below, may be submitted to arbitration, the parties shall first follow the
informal and escalating procedures set forth below.
(1) The complaining party will notify the other party in
writing of the dispute, and the non-complaining party will exercise good
faith efforts to resolve the matter as expeditiously as possible.
(2) In the event that such matter remains unresolved for
thirty (30) days after the delivery of the complaining party's written
notice, a senior representative of each party shall meet or confer within ten
(10) business days of a request for such a meeting or conference by either
party to resolve such matter.
(3) In the event that the meeting or conference specified
in (2) above does not resolve such matter, the senior officer of each party
shall meet or confer within ten (10) business days of the request for such a
meeting or conference by either party to discuss and agree upon a mutually
satisfactory resolution of such matter.
(4) If the parties are unable to reach a resolution of the
dispute after following the above procedure, or if either party fails to
participate when requested, the parties may proceed in accordance with
subparagraph b. below.
b. Except as provided in subparagraph e. below, any dispute
arising under this Agreement shall, after utilizing the procedures in
subparagraph a., be resolved by final and binding arbitration in Long Beach,
California, before a single arbitrator selected by, and in accordance with,
the rules of commercial arbitration of the American Arbitration Association.
Each party shall bear its own costs in the arbitration, including attorneys'
fees, and each party shall bear one-half of the cost of the arbitrator.
c. The arbitrator shall have the authority to award such damages
as are not prohibited by this Agreement and may, in addition and in a proper
case, declare rights and order specific performance, but only in accordance
with the terms of this Agreement.
d. Either party may apply to a court of general jurisdiction to
enforce a arbitrator's award, and if enforcement is ordered, the party
against which the order is issued shall pay the costs and expenses of the
other party in obtaining such order, including reasonable attorneys' fees.
e. Notwithstanding the provisions of subparagraphs a. and b.
above, any action by StoresOnline to enforce its rights under Paragraph 12e
of this Agreement or to enjoin any infringement of the same by Reseller may,
at StoresOnline's election, be commenced in the state or federal courts of
California, and Reseller consents to personal jurisdiction and venue in such
courts for such actions.
12. GENERAL.
a. ENTIRE AGREEMENT; AMENDMENT; SEVERABILITY. This Agreement,
the Stock Purchase Agreement and the Warrant Agreement, each dated of even
date herewith, constitute the entire agreement between StoresOnline and
Reseller and supersede all previous understandings, negotiations and
proposals, whether written or oral. This Agreement may not be altered,
amended or modified except by an instrument in writing signed by duly
authorized representatives of each party. In the event that any one or more
provisions contained in this Agreement should for any reason be held to be
unenforceable in any respect, such unenforceability shall not affect any
other provisions hereof, and this Agreement shall be construed as if such
unenforceable provision had not been contained herein.
b. FORCE MAJEURE. Notwithstanding anything contained herein to
the contrary, neither party shall be liable to the other for delays or
failures to perform an obligation to the other hereunder if such delay or
failure to perform is due to any act of God, acts of civil or military
authority, labor disputes, fire, riots, civil commotion's, sabotage, war,
embargo, blockage, floods, epidemics, delays in transportation, inability
beyond StoresOnline's reasonable control to obtain necessary labor, materials
or manufacturing facilities, or when due to governmental restrictions,
including the inability of StoresOnline to obtain appropriate U.S. export
license approval or the subsequent suspension of same. In the event of any
such delay or failure, the parties shall have an additional period of time
equal to the time lost by reason of the foregoing in which to perform
hereunder.
c. GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of California, without regard to principles
of choice of law.
d. ASSIGNMENT. Reseller shall not assign this Agreement or any
rights hereunder without the prior written consent of StoresOnline, which
consent shall not be unreasonably withheld; PROVIDED, HOWEVER, that Reseller
may assign this Agreement or any rights hereunder to a successor or affiliate
corporation. StoresOnline may assign this Agreement to a subsidiary or
affiliate corporation.
e. DISCLOSURE OF INFORMATION. Each party hereto acknowledges
that, in the course of meeting its obligations under this Agreement, it will
obtain information relating to the other party, which is of a confidential
and proprietary nature ("PROPRIETARY INFORMATION"). Such Proprietary
Information may include, but is not limited to, trade secrets, know-how,
inventions, techniques, processes, programs, schematics, data, customer
lists, financial information and sales and marketing plans.
Each party shall at all times during the term of this Agreement and
for three years after its termination, keep in confidence and trust from any
person or entity, all Proprietary Information of the other party and shall
not disclose or use such Proprietary Information without the prior written
consent of the party which owns such Proprietary Information, unless
compelled to disclose such Proprietary Information by judicial or
administrative process (including, without limitation, in connection with
obtaining the necessary approvals of this Agreement and the transactions
contemplated hereby of governmental or regulatory authorities) or by other
requirements of law. Upon termination of this Agreement, each party shall
promptly return to the other party all Proprietary Information under
itscontrol and all copies thereof.
Neither party shall disclose the specific terms of this Agreement
to any third parties except as may be mutually agreed or as required by law
or the order of a court of competent jurisdiction.
The above limitations on disclosure of Proprietary Information
shall not apply to information which becomes publicly available through no
act of the disclosing party, is released by the owning party in writing with
no restrictions, is lawfully obtained by the disclosing party without breach
of this Agreement from third parties without obligations of confidentiality,
is previously known by the disclosing party without similar restrictions as
shown by documents in its possession prior to disclosure or is independently
developed by the disclosing party.
f. COMPLIANCE WITH LAW. Reseller shall comply with all
applicable law the violation of which would have a material adverse effect on
StoresOnline or its business, including, without limitation, the export
control laws of the United States of America and prevailing regulations which
may be issued from time to time by the United States Department of Commerce
and any export control regulations of the United States and those countries
involved in transactions concerning the exporting, importing and re-exporting
of Services purchased under application of these terms and conditions.
Reseller shall also comply with the United States Foreign Corrupt Practices
Act and shall indemnify StoresOnline from violations of such act by Reseller.
This provision shall survive any termination or expiration of the Agreement.
g. EXERCISE OF REMEDIES. Any delay or omission by either party
to exercise any right or remedy under this Agreement shall not be construed
to be a waiver of any such right or remedy or any other right or remedy
hereunder.
h. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO
THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE
TO FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER.
i. HEADINGS. Headings contained in this Agreement are for
convenience only, are not a part of this Agreement, and do not in anyway
interpret, limit or amplify the scope, extent or intent of this Agreement or
any of the provisions hereof.
j. REGULATORY APPROVAL. Reseller warrants that the Services and
the Malls, when utilized with its own products, will comply with all
applicable industry and governmental standards and requirements.
StoresOnline assumes no responsibility or liability for these governmental
and regulatory standards or requirements, which liability and responsibility
is assumed entirely by Reseller. Upon request, StoresOnline will provide
copies of regulatory approvals to Reseller.
k. STORESONLINE BRANDING. StoresOnline shall have the right to
place a "POWERED BY NETGATEWAY" or "POWERED BY STORESONLINE" byline in a
prominent mutually agreed upon location on each storefront site and on each
Mall site.
l. PUBLICITY. StoresOnline (or its parent company, Netgateway,
Inc.) shall have the right to inform its customers and the public that
StoresOnline has entered into this Agreement with Reseller. Each party may
use the other's name or the name of its customers in marketing the Services
and the development of the Malls and may link to each other's websites, but
neither party will perform any actions which will harm the other's or its
customers name and reputation.
m. NOTICES. Any notice required in connection with this
Agreement shall be given in writing and shall be deemed effective upon
personal delivery or three business days after deposit in the United States
mail, registered or certified, postage prepaid and addressed to the party
entitled to such notice at the address indicated below such party's signature
line on this Agreement or at such other address as such party may designate
by ten (10) days' advance written notice to the other party. All facsimile
notices shall be confirmed by written notice mailed, as provided above,
within five (5) days of the date of the facsimile is sent. Once confirmed,
the notice shall be effective as of the date of the facsimile.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date set forth herein.
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC., A CALIFORNIA CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
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Its: Authorized Agent
NETGATEWAY, A NEVADA CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
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Its: President
Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
MEDIAONE OF COLORADO, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Its: V.P.
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Address for Notices:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Address:
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail Address:
StoresOnline Sales Representative: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Company URL: ▇▇▇▇▇▇▇▇.▇▇▇
Technical Contact:
Telephone:
E-mail Address:
ADDENDUM
NAME OF RESELLER: MEDIAONE OF COLORADO, INC.
TYPE ENTITY: CORPORATION
DATE OF AGREEMENT: JULY 26, 1999
--
STANDARD FEATURE SET
Description of Reseller's Business: High speed Internet access, data
transmission and cable television programming services.
[**REDACTED**]
MALL DEVELOPMENT SERVICES AND PRICES
1. DEVELOPMENT. (a) StoresOnline shall develop, manage, maintain and
host the Malls, which shall be branded around the Reseller name, brand and
image. The Malls shall include an appropriate URL address, four to six featured
products from various Reseller and third party advertisers, additional Reseller
and non-Reseller advertiser stores and products catalogued with text references,
and links to top tier eTailer sites (e.g., ▇▇▇▇▇▇.▇▇▇). The Malls shall also
include an appropriate search engine, commerce functionality, banner and other
appropriate advertising space, and such other features as both parties shall
reasonably direct. The Malls shall link to a local online Mall in each cable
market where Reseller has launched the sale of the Services pursuant to this
Agreement. The Malls shall be accessible and fully functional by September 1,
1999 or such earlier date as may be mutually agreed by the parties.
(b) ADDITIONAL MALLS MAY BE LAUNCHED PURSUANT TO THIS AGREEMENT UPON
RESELLER'S WRITTEN NOTICE TO STORESONLINE OF ITS INTENTION TO LAUNCH A MALL IN A
PARTICULAR BROADCAST MARKET. EACH ADDITIONAL MALL SHALL BE OPERATIONAL WITHIN
FOURTEEN (14) BUSINESS DAYS OF STORESONLINE'S RECEIPT OF A WRITTEN NOTICE OF
LAUNCH BY RESELLER. CUSTOMER STOREFRONTS DEVELOPED PURSUANT TO THIS AGREEMENT
SHALL BE OPERATIONAL WITHIN FOURTEEN (14) BUSINESS DAYS OF STORESONLINE'S
RECEIPT FROM A STOREFRONT CUSTOMER OF A COMPLETED STOREFRONT APPLICATION(S) AND
ANY OTHER INFORMATION REQUIRED TO COMPLETE SUCH STOREFRONT, INCLUDING, WITHOUT
LIMITATION, INFORMATION RELATED TO CUSTOM DEVELOPMENT SERVICES REQUIRED BY SUCH
CUSTOMER.
[**REDACTED**]
4. PROMOTION. StoresOnline shall produce two thirty-second
television commercials promoting the Malls and the Services. Reseller, at
its sole expense, shall cablecast the commercials produced by StoresOnline a
combined minimum of five hundred times per broadcast month, per broadcast
market, in each broadcast market where the Malls are fully functional, and
shall continue to cablecast such commercials for the term of this Agreement.
5. EQUITY PARTICIPATION. Pursuant to a Stock Purchase
Agreement dated of even date herewith, Reseller shall receive 50,000 shares
of unregistered common stock of Netgateway, Inc., StoresOnline's corporate
parent. Such common stock shall be subject to applicable restrictions under
Rule 144 of the federal securities laws. Pursuant to a Warrant Agreement
dated of even date herewith, Reseller shall also receive warrants for the
purchase of up to 200,000 additional shares of common stock of Netgateway,
Inc.; such warrants shall vest incrementally in tranches of 50,000 warrants
as each additional one million of Reseller's cable television homes launch
the Malls (over the one million homes intended to be launched on or before
September 1, 1999) for a total of five million cable television homes ("Full
Distribution") to be launched on or before February 28, 2001. All warrants
which vest pursuant to this Agreement shall be exercisable by Reseller at a
price equal to the market value of the common stock of Netgateway, Inc. as of
the date such warrants are earned. Subject to certain divestiture
obligations (as set forth more fully in the Warrrant Agreement), all warrants
which vest pursuant hereto shall be exercisable for a period of two years
from the date on which such warrants vest.
6. MISCELLANEOUS. Reseller acknowledges and agrees that
StoresOnline intends to market independently the Services through various
other channels and other reseller relationships for which Reseller shall have
no participation. The parties hereto seek to launch the first Mall and begin
promotion thereof into one million of Reseller's cable television homes by
September 1, 1999. The parties shall use their best efforts to achieve Full
Distribution into all remaining Reseller cable television homes on or before
February 28, 2001.
EXHIBIT A
STANDARD LICENSE AGREEMENT TERMS
1. LICENSE. This License allows you to use any software associated
with the provision of the Services.
2. RESTRICTIONS. You may not use, copy, modify or transfer the
program, or any copy, modification or merged portion, in whole or in part,
except as expressly provided for in this License. If you transfer possession of
any copy, modification or merged portion of the program to another party, your
License is automatically terminated.
3. TERM. The License is effective until terminated. You may
terminate it at any other time by notifying Reseller of your intent to do so.
The License will also terminate upon the occurrence of certain events set forth
elsewhere in this Agreement. Upon such termination, you agree to destroy the
program together with all copies, modifications and merged portions in any form.
4. EXPORT LAW ASSURANCES. You agree that neither the pogrom nor any
direct product thereof is being or will be shipped, transferred or re-exported,
directly or indirectly, into any country prohibited by the US Export
Administration Act and the regulations thereunder or will be used for any
purpose prohibited by the Act.
5. LIMITED WARRANTY. The program is provided "AS IS" without
warranty of any kind, either expressed or implied, including, but not limited
to, the implied warranties of merchantability and fitness for a particular
purpose. The full text of the warranty is provided in the user manual.
6. LIMITED LIABILITY. In no event will StoresOnline or Reseller be
liable to you for any damages, including any lost profits, lost savings or other
incidental or consequential damages arising out of the use or inability to use
such program even if StoresOnline or Reseller has been advised of the
possibility of such damages, or for any claim by any other party.
7. GENERAL. If you are a Government end-user, this License
conveys only "RESTRICTED RIGHTS," and in its use, disclosure and duplication
are subject to Federal Acquisition Regulations, subparagraph (c)(1)(11)
52.227-7013. (See U.S. Government End-User provisions in manual.) This
License will be construed under the laws of the State of California, except
for that body of law dealing with conflicts of law. If any provision of the
License shall be held by a court of competent jurisdiction to be contrary to
law, that provisions shall be enforced to the maximum extent permissible, and
the remaining provisions of this License shall remain in full force and
effect.